The global impact of the Digital Services Act
An interview with dr. Aída Ponce Del Castillo
Dr. Aída Ponce Del Castillo senior researcher at the Brussels based Foresight Unit of the European Trade Union Institute (ETUI) talks to Find Out Why about the EU’s Digital Services Act (DSA). DSA is a legislative proposal which aims to regulate online and intermediary platforms that bring together users and providers of goods and services as well as information. The DSA builds on the existing rules (established by the E-Commerce directive) to provide a framework for identifying and removing harmful digital content and illegal products. Dr. Ponce Del Castillo has extensively focused on the impact of this regulatory package on digital labour in her recent research paper. In this interview she discusses the global impact of DSA in its attempt to regulate the Internet.
by Elena Gkiola
Do you think that Digital Services Act will affect global standards for platform accountability?
The Digital Services Act together with her sister regulation, the Digital Markets Act, regulate the Internet space, the platforms and the environment in which platforms and users like us interact and work with them. So yes, both digital services regulations will impact the accountability and everything that is done on the Internet. Not only for the European Economic Area, but also outside of Europe. Transparency and accountability for non-EU businesses will be required.
Which regions might follow first?
Already the French government introduced content moderation obligations for social networks in the bill known as “Republican Principles.” Austria and Poland have also presented proposals for their national legislation. Hopefully the US will follow too, because most of the tech companies are based there. Shortly after Joe Biden took the Presidential seat, the President of the European Commission, Ursula Von Der Leyen, suggested that the Internet regulation could be accomplished in a New Transatlantic Pack. It will be remarkably interesting to follow the talks between President Biden and Von Der Leyen, considering that the Digital Services Act (DSA) and Digital Markets Act (DMA) will be voted upon within two years, during which time the Internet will be growing.
We will see who else will follow, but for sure what Europe is doing in this area and with the European Green Deal will set standards for the entire world. The impact is enormous. Europe has already done it once with the General Data Protection Regulation (GDPR). Now with the DSA and the DMA it will go even further. It is the most ambitious regulatory initiative.
Do you see any issues with implementation?
It is not going to be easy. First, because of the geopolitical aspect, and second because of the ambition of regulating the Internet. A few years ago the e-Commerce Directive attempted a regulatory approach, but the Internet is moving by the nanosecond. In addition, technological innovation by certain actors is driving the focus in a quite different direction than the harmonized rules on protection of the market, which we have within the European Union.
The EU is always trying to push forward the European values in all activities and initiatives and those are in a quite different dimension than those driven by other Internet players or platforms.
The implementation is not going to be easy as well. The current shape and form of the Digital Services Act is already spurring a lot of discussion and lobbying. This agreement is heavily debated in the European Parliament mainly between the Internal Market and the Economics Committees by all 27 Member States. Every Member State has diverse ways of thinking how the Internet should evolve and how online platforms should be regulated. Moreover, this process of negotiation will be heavily lobbied by those actors.
What would the conflict be between the Digital Services Act and EU national laws in the context of what we are talking about here?
The European Commission produced the harmonized proposal in the form of a Digital Services Act, to update and harmonize with the 2009 e-Commerce directive, in order to make the Internet safer. Nevertheless, European Member States have their own interpretation of looking at platforms and of regulating them. That said, Member States will have a lot of say on how the proposal looks to them and their own national problems. What is considered harmful in the Netherlands for example might not be considered harmful in Spain.
Each Member State could have a completely unique way to regulate harmful content, and to prevent harmful information circulating in public or distributed in the media. The Digital Services Act touches upon cultural aspects so there might also be some difference in opinion between EU national authorities, and between the national authorities and the European Commission.
Concerning the lobbying strategy by big tech companies, what do you say they want to influence?
They want to influence every single word and comma. There are a number of organizations lobbying European institutions, trying to shape the drafting of these very heavy pieces of legislation and influence MEP’s votes in Brussels.
The lobbies of the big tech companies are spending millions of euros in amounts that are incomparable to the equally important lobbying efforts from civil society or consumer organizations, NGO’s, and privacy associations, etc. This is a factor that might be a unfair from a social justice perspective. And that is why the DMA is in place: to limit how power is distributed in the market overall.
Do you think that there are still some progressive measures that are missing in the DSA proposal?
Yes. The proposal aims at making a safer Internet environment and although it takes good initiatives from the e-Commerce Directive, it could also address aspects around harmful content with an emphasis on microtargeting.
Microtargeting is something that has been criticized by other experts and it is not included in the current proposal. After that criticism, the official from the Cabinet of Vice-President Věra Jourová seemed to support a ban on microtargeting for online political advertising.
Another issue missing is how to embed the concerns of civil society. Although this initiative is trying to protect the individual internet users, it does not say much about their environments. It could be much better if the concerns of consumers, associations, workers’ associations and other civil society interest groups could be embedded in the debate. And with that a full harmonization can be truly achieved. Interestingly, the European Data Protection Supervisor recommended additional measures to protect individuals on content moderation, online targeted advertising and recommender systems.
In the discussion of misinformation is there a consensus? Can the Digital Services Act, as it is now, prevent dis/misinformation?
It is a regulation with the aim to provide a safer environment. It is not a preventative regulation. The rules aim to create a trusted online environment where fundamental rights are effectively protected. Nevertheless, the DSA does not prevent unsafe behavior. For that, other legal instruments are necessary. The European Commission has already put forward the Code of Conduct for misinformation a few years ago. However, the Commission observed that the code was not truly respected. Private actors need to work harder on preventing misinformation. A Code of Conduct though does not have any sanction and cannot enforce anything. It is just a voluntary instrument, a kind of promise to not misinform people. The DSA does not have a truly preventive measure at the moment.
Does Article 29 of the DSA help consumers/users have an influence over what will be seen in their feed?
I truly hope so. Article 29 says that when several options are available, very large online platforms shall provide easily accessible functionality on their online interface, allowing the recipient of the service to select and to modify. Today, if you go into a service provider and you read what is proposed it is not easily accessible. With the DSA, this should change. This has the potential to be a very good provision, but the devil is in the detail.
Do you think it is possible to have horizontal applications for all platforms under the DSA?
It’s difficult to say yes or no. The conditions of the platforms are very different. But the intention of the DSA is to reach harmonization. We know that this is just a proposal yet, I am very sure that it will be negotiated heavily. The outcome will depend upon the negotiations.
Which element of the DSA do you think will be subject to the most change through the negotiation process?
Everything. Every single word of the DSA is about legislating the Wild West part of the Internet. This is a big regulatory step. This proposal is about keeping the Internet safer and is influencing a lot of the fundamental aspects of this online market environment. Hence every single word will be debated. It is going to be a rollercoaster of digital negotiations in the coming years in the EU Parliament and in the EU Commission as well.
What is the political debate in Brussels now?
Everything is moving around the DSA, the DMA and the Green New Deal. Together they are the biggest initiatives from the European Commission that will touch every single person in the world. These will have a lot of impact on citizens and users because now we all buy goods and services through the Internet during the pandemic. Our lives are becoming more digital and the power that these platforms have on us is enormous. We will see if the European Parliament will accurately bring the voice of civil society into the discussions. Civil society groups will have to be very attentive and not hesitate to step into the debate.
